As Fair Housing Act Turns 50, Landmark Law Faces Uncertain Future

Under the Trump administration, and most Republican White Houses, enforcement of the 1968 anti-discrimination law has weakened. Housing advocates say the constantly changing federal approach has held back progress.

President Lyndon Johnson signed the Fair Housing Act on April 11, 1968. (Lyndon B. Johnson Library)

Fifty years after passage of the Fair Housing Act -- a law intended to end housing discrimination and increase homeownership among minorities -- key enforcement provisions of it are being dismantled by the federal government.

Efforts to enforce the landmark law, which was signed by President Lyndon B. Johnson on April 11, 1968, have ebbed and flowed over the past five decades. Democratic presidents have tended to direct more resources toward enforcing it and have put greater emphasis on the Department of Housing and Urban Development's role in desegregating cities. Republican administrations, meanwhile, have routinely scaled back those efforts.

But as the Fair Housing Act turns 50, many experts say HUD's recent actions, under the direction of Secretary Ben Carson, represent a new level of attempts to undo the legislation.

Under Carson and President Donald Trump, HUD has decisively pared back its role as the primary legal advocate for the Fair Housing Act. Carson instructed HUD officials to delete the words “inclusive” and “free from discrimination” from the agency’s website. HUD recently settled a case in Houston under terms that at least one former official says does nothing to end residential discrimination in the city. And the agency terminated an investigation into Facebook for alleged discriminatory housing advertising practices. Carson has also delayed a requirement, established under the Obama administration, that local governments must create detailed plans to integrate racially divided neighborhoods. And HUD has put an indefinite hold on secretary-initiated housing cases, which historically have been seen as a critical tool in fighting systemic housing discrimination.

Advocates see the moves as a rollback of progress that had been made, particularly under the Obama administration.

“We had these important fair housing advances that were years in the making -- carefully constructed rules on fair housing that were suspended with a memo from the administration,” says Philip Tegeler, president of the Poverty and Race Research Action Council.

By law, HUD must still investigate housing discrimination complaints that are filed with the agency by civil rights groups or individuals. But it has stopped initiating any investigations or legal actions on its own. HUD-initiated cases have historically tackled systemic housing segregation and lending discrimination.

HUD spokesman Jereon Brown told The New York Times that the agency is not backing away from its duty to pursue the Fair Housing Act or the law’s aim to reverse discriminatory housing practices. The department, according to Brown, is turning its attention to the bulk of its discrimination cases, which he said were not race-based.

“There is no mission shift. We are, in fact, putting more emphasis in sexual harassment” complaints, Brown told the Times. “In addition, 60 percent of the fair housing complaints we receive are disability related, and the majority of those have to do with service animals.”

HUD Secretary Ben Carson (AP/Matt Rourke)

The changes at HUD have left what housing advocates say is an uneven legal landscape that varies greatly from state to state.

In some places, like Louisiana and Texas, landlords cannot be forced to accept federal housing vouchers. Elsewhere, many cities have utilized exclusionary zoning practices to keep affordable housing out of more affluent neighborhoods, say housing advocates.

Without the federal government acting as an enforcer, the task of ensuring that fair housing standards are met falls to local civil rights organizations. That's a problem, says one former HUD official.

“You are never going to compare what local civil rights groups can do with what the federal government is going to do," says Gustavo Velasquez, director of the Urban Institute’s Washington-Area Research Initiative and a former assistant secretary for fair housing and equal opportunity at HUD under Obama. "Just on fair housing, the federal government has 600 people across the country working on these cases. The combined staff of local groups working on housing across the country can’t match the resources available from the federal government.”

Recent Rollbacks

The settlement last month of a Fair Housing Act lawsuit in Houston is evidence, housing advocates say, that HUD under Carson is not committed to using court actions to address housing segregation.

That case, filed under the Obama administration, focused on the fact that Houston Mayor Sylvester Turner was blocking the construction of low- to moderate-income housing in an affluent section of the city. Furthermore, according to the results of an investigation HUD released in early January 2017, Houston's application process for affordable housing discriminated against minorities.

Turner had defended his decision to block the housing project by arguing that black residents in low-income neighborhoods didn't want to be uprooted and dispersed to wealthier white neighborhoods. Instead, he said, more needed to be done to attract additional investment in existing black neighborhoods.

“Our underprivileged families should have the right to choose where they want to live,” said Turner in 2016, “and that choice should also include the right to stay in the neighborhood where they have grown up. … I categorically reject the notion that in order for poor children to participate in the American dream that I have to move them from where they are and place them somewhere else. The answer is to invest in the communities where they are.”

But in what critics say is an about-face by the agency, HUD last reached a settlement with Houston that doesn’t require the city to construct affordable housing in affluent neighborhoods -- but does allow the city to encourage landlords in low-income neighborhoods to rent apartments to families that are using federal housing vouchers. (Texas state law allows landlords to refuse to rent to voucher users.) The city will also invest $2 million in housing for families left homeless after Hurricane Harvey.

What the agreement doesn’t do, according to Velasquez, is “compel Houston to do something about segregation in the city.”

The settlement has triggered a lawsuit by a Texas fair housing group, Texas Housers, who say Houston was clearly maintaining residential segregation in the city.

But with the federal government backing away from the case, Kate Scott, deputy director of the Equal Rights Center in Washington, D.C., says any battle to force local government to comply with fair housing laws is neutered. Scott was part of a federal action in 2012 against St. Bernard Parish in Louisiana, which federal investigators and the courts found were discriminating against black residents looking for housing after Hurricane Katrina. She says housing lawsuits in more conservative state courts are almost pointless.

“In Louisiana, it wasn’t an option to go into state court and sue over fair housing because we would always lose,” Scott says. “We are going to see the same pattern playing out over the country.”

In a somewhat similar move, HUD last year abruptly dropped an investigation into whether Facebook had allowed housing advertisers to target white users and exclude other users from seeing the ads if their social media activity suggested they were black, Hispanic or Asian-American.

HUD had launched that query in 2016. A lawsuit has been filed in federal court alleging that the social media giant continues to discriminate against women, veterans and single mothers in housing ads. By law, HUD will have to investigate the allegations.

A History of Poor Enforcement

The Fair Housing Act was the last major civil rights achievement of President Johnson’s administration. It came in the wake of a series of riots in Detroit, Los Angeles and Newark, N.J., and after the assassination of Rev. Martin Luther King, Jr. It also followed the famed Kerner Commission report on race, which detailed the disparity in homeownership between African-Americans and white Americans and blamed racism as the main culprit behind the riots. The Fair Housing Act aimed to reverse the pattern of residential segregation and do so through enforcement actions when necessary.

Support for the basic principles of the Fair Housing Act has historically been bipartisan, according to Teleger, the president of the Poverty and Race Research Action Council. Enforcement has been another matter.

“The principle that you shouldn’t discriminate in housing, that’s a pretty widely held belief, and it’s widely supported that we shouldn’t have policies that we segregate families by race,” Teleger says. “However, to effectuate those goals requires substantial changes to the status quo. There are issues like local exclusionary zoning that have a lot of local support.”

Protestors demand equal housing access and other civil rights at the March on Washington for Jobs and Freedom in 1963. (Wikimedia Commons)

To some degree, federal resources for enforcing the act have tended to shift with political winds.

President Richard Nixon's HUD secretary, George Romney, had challenged local zoning laws as governor of Michigan. Once he joined Nixon's administration, Romney drafted recommendations to better integrate housing. Nixon blocked them and drove Romney from his cabinet in 1972.

In the 1990s, Bill Clinton tapped former San Antonio Mayor Henry Cisneros to overhaul HUD and double the department's efforts to enforce the Fair Housing Act and address racial segregation. Cisneros did make some strides in that effort. For example, he sent in federal marshals after a town in Texas had refused to allow black residents into an all-white public housing development -- the first time in history that HUD had taken over a local housing authority for civil rights violations. But Cisneros' efforts were clipped after Congress slashed the agency's budget following the 1994 GOP takeover.

Former President Barack Obama called for increasing HUD funding by 19 percent over his predecessor, George W. Bush.

In many ways, then, the efforts to step back Fair Housing enforcement under President Trump are par for the course under a Republican administration. Still, the vacillating approaches to the law have made it hard to make inroads in integrating housing, advocates say.

“When you go back and forth every eight years about whether you are going to enforce the law or how you are going to fund HUD, of course you are not going to make any progress,” says Scott at the Equal Rights Center.

That's borne out in the data, which suggest that not much has changed in the past 50 years in terms of housing segregation.

The Kerner Commission report was updated this year to mark its 50th anniversary. Despite efforts to better include minorities and especially black Americans in the broader housing market, one metric has remained stubbornly low: homeownership.

In 1968, only 41.1 percent of black Americans owned homes compared to 65.9 percent of whites. In 2018, almost the same exact percentage of black Americans, 41.2 percent, own homes. White homeownership has ticked up 5.2 percent in the same period.

A New Era of Undoing

Although the Trump administration isn't the first to change HUD priorities, housing experts say the agency's current posture represents a new era.

From the time of Trump’s inauguration in January to October 2017 (the most recent data available), HUD took legal action in five discrimination cases, and all but one had been initiated before Trump took office. In contrast, HUD under Obama took legal action in 26 discrimination cases in his first year in office, and HUD under George W. Bush processed an average of 25 cases per year in his second term. (Data were not available prior to 2004.)

In the waning years of the Obama administration, HUD adopted what it called an Affirmatively Furthering Fair Housing rule, which forced agencies receiving HUD-funded community block grants to complete a federal fair housing assessment in order to receive funding. Cities and counties were required to examine residential racial segregation and concentration of poverty.

But under Trump and Carson, HUD has delayed implementing that requirement until at least 2020. Carson has referred to the plans laid during the Obama administration as social engineering and questioned how inclusionary housing would impact an existing community.

“The rule would fundamentally change the nature of some communities from primarily single-family to largely apartment-based areas by encouraging municipalities to strike down housing ordinances that have no overtly (or even intended) discriminatory purpose -- including race-neutral zoning restrictions on lot sizes and limits on multi-unit dwellings, all in the name of promoting diversity,” Carson wrote in The Washington Times shortly after the rule’s adoption.

Carson’s op-ed in 2015 seems to have presaged his actions as HUD secretary.

Few in the housing community have been surprised by HUD's actions over the past 15 months, but they nonetheless have registered their disappointment at what they see as a large-scale unwinding of policies related to the 50-year-old Fair Housing Act.

Delaying the Affirmatively Furthering Fair Housing rule, says Teleger at the Poverty and Race Research Action Council, is something of a slap in the face.

“To be suspending that near the anniversary year of the law," he says, "speaks to how politics is trumping policy here."